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FAULT-BASED AND STRICT LIABILITY IN THE LAW OF NEIGHBOURS MARÍA PAZ GATICA RODRÍGUEZ Presented for the Degree of Doctor of Philosophy The University of Edinburgh 2017 Abstract By the end of the twentieth century, and after a long line of conflicting case law, the question about the basis of liability in nuisance was settled: in Scotland, damages are awarded only upon proof of fault (RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985 SC (HL) 17). Fault, in turn, can adopt many forms: malice, intention, recklessness, negligence, and conduct causing a special risk of abnormal damage (Kennedy v Glenbelle Ltd 1995 SC 95). Many aspects of this seemingly clear picture, however, remain problematic. On the one hand, the way in which this model is interpreted and applied gives place to particular forms of liability that can actually be characterised as strict. On the other hand, two other areas of the law of neighbours that overlap with the scope of nuisance do not fit entirely this model, namely the regulation of disputes over uses of water and of those arising from withdrawal of support. The main argument of this thesis is that damages claims in the context of neighbourhood are governed by two distinct rules: a general fault-based liability rule for nuisance, and an exceptional strict liability rule for abnormally dangerous conduct. For the first of these rules, the thesis offers an evaluation of the fault model adopted in Kennedy v Glenbelle Ltd, explaining the interaction between its different elements and highlighting the developments that can result in forms of strict liability. For the second of these rules, the thesis develops an analysis of its elements and nature, as well as a proposal that delineates its scope of application. This two-rule model offers a justification for the current structure of the law applicable to disputes over uses of water. The strict liability rule applicable to interferences with the natural flow of watercourses, traditionally explained as based upon the infringement of property rights, is better explained as danger-based. The regulation of disputes arising from withdrawal of support, however, is not consistent with this model, even though they have also been characterised as nuisances. It is argued that this framework entails unjustified inconsistencies, both internal and by reference to the model proposed, and that it should be adjusted accordingly. i Lay Summary In Scots law, there was a longstanding discussion about whether a person, in order to obtain compensation for harm caused by his neighbour’s use of property, required only to demonstrate that the latter caused the harm (strict liability) or, additionally, that he acted with fault, that is, that he was negligent – i.e. not careful enough – or acted with the intention to harm (fault-based liability). But by the end of the twentieth century, this discussion was resolved: the House of Lords established that fault was indeed required, and the Inner House further clarified that fault could adopt many different forms, namely malice, intention to harm, recklessness, negligence and engaging in particularly dangerous activities. Many aspects of this seemingly clear picture, however, are still problematic. On the one hand, this fault-based liability rule is sometimes applied or interpreted in a way in which the actual result is closer to a strict liability rule. On the other hand, some particular types of conflicts between neighbours are not fully subject to the fault-based rule: disputes over uses of shared natural water (like a river) and those arising from withdrawal of the physical support that lands or buildings provide to each other are subject to dual systems, where in some cases a fault-based rule is applied and in others a strict rule is applied. The main argument of this thesis is that neighbour disputes in general are actually subject to two different rules: one fault-based that is applied broadly to all disputes, and one strict that is applied only to particularly dangerous activities. The thesis explains and analyses the nature, elements and scope of both of these rules, highlighting all their problematic aspects. This model serves also to explain the way in which the law deals with conflicts over uses of water: the dual system for water also operates a distinction on the basis of danger, even though this is not the traditional explanation. The disputes about support, however, are treated differently by the law: the dual system is not based on danger, but on other elements. The thesis argues that this is not justified and that these rules should be adjusted in order to fit the proposed model. ii Declaration According to the Postgraduate Assessment Regulations for Research Degrees, Regulation 25, I hereby declare that (a) this thesis has been composed by me; (b) this work is my own; and (c) this work has not been submitted for any other degree or professional qualification. María Paz Gatica Rodríguez Edinburgh, 8 May 2017. iii iv Acknowledgements I was lucky enough to count on wonderful people, both here and back home, that helped me survive and succeed in this enterprise of writing a thesis in a never-ending winter. So here are my acknowledgements to all those people who trusted, supported and accompanied me throughout these years. First and foremost, thanks to my family. I will be eternally grateful for their support, especially my parents’. They adjusted their lives to my needs, funded the most wonderful holidays, brought me home when I needed to, and a long etcetera. Then there are the two people that actually made this thesis possible: my supervisors, Prof Elspeth Reid and Scott Wortley. Without their knowledge, commitment, encouragement and endless support, I could not have completed this project. Apart from my supervisors, other members of the community at the Edinburgh Law School contributed in various ways to my research. Thanks to Prof Kenneth Reid, Dr Eric Descheemaeker, and Prof George Gretton. Also to Dr Euan MacDonald, who inspired me more than he knows. Thanks as well to my friends from the Scots Law Discussion Group: Alisdair MacPherson, Alasdair Peterson, Lorna MacFarlane, and Po-Yuan Chang. I am especially grateful to the Edinburgh Legal Education Trust for giving me the possibility of visiting many universities abroad and building a network that will be of immense value for my academic life. I am grateful also to my colleagues and friends from Facultad de Derecho, Universidad de Chile, who kept me updated on all the relevant events happening at work and, more importantly, encouraged me and pushed me to finish the PhD and go home. Thanks especially to Isabel Montt, María Agnes Salah, Cristián Banfi, Mauricio Tapia, and Dean Davor Harasic. Last but not least, I would like to thank my friends. To all the ones I left back home, but very especially to Rosario Grez and Pilar Goycoolea, who taught me every day about unconditional friendship and support. To my temporary Chilean “families” here in Edinburgh: María Ignacia Abogabir & José Luis de Marchena, and Libertad Triviño & Jorge Boldt. And to all my Law School colleagues, with whom I shared long hours in the office, nervous breakdowns, joyful submissions, v hopeful goodbyes, and of course, countless pints: Dr Katarzyna Chałaczkiewick- Ładna, Dr Giedre Jokubauskaite, Dr Paolo Sandro, Diogo de Sousa e Alvim, Evgenia Kanellopoulou, Felipe Oliveira de Sousa, Dr David Rosatti, Dr Konstantine Eristavi, Martin Kelly, Nicolás Ojeda, all the (ex) crew from B22, and especially Pablo Grez, who supported me throughout the very intense last months. Yet the biggest thank you goes to my kind and brilliant flatmate, partner in crime, PhD sister and friend Justine Bendel: without her, this would have been simply impossible. I hope we reunite sooner rather than later. To all of you, a huge thank you. This thesis is because of you. This research was conducted thanks to the financial support of Programa de Formación de Capital Humano Avanzado – Becas Chile (CONICYT), agreement Nº 72140231; and of Facultad de Derecho, Universidad de Chile, through their Política de Perfeccionamiento Académico en Chile y el Extranjero. vi Table of Contents Abstract i Lay Summary ii Declaration iii Acknowledgements v Table of Contents vii Table of Cases xi List of Abbreviations xvii Introduction 1 1. Problem and main argument 1 2. Scope 3 3. Methodology 4 4. Structure 4 1 Conceptual Framework 7 1. Introduction 7 2. Fault 8 2.1. Notion and forms of fault 8 2.2. Intention 9 2.3. Negligence 15 2.4. Recklessness 17 3. Strict and “stricter-than-normal” liability 19 3.1. From fault-based to strict liability 19 3.2. Strict liability 20 3.3. Heightened standard of care 24 3.4. Presumption of fault 25 3.5. Res ipsa loquitur 27 4. Chapter conclusions 29 2 Nuisance 31 1. Introduction 31 2. The fault framework adopted in Kennedy v Glenbelle Ltd 33 2.1.